POLITICS

Supreme Court Backs White House on Jerusalem Passport Dispute

By ADAM LIPTAKJUNE 8, 2015

Ari Zivotofsky and his son, Menachem, in Washington last fall. The boy’s passport listed his birthplace as Jerusalem, not Israel. CreditCarolyn Kaster/Associated Press

WASHINGTON — In an important separation-of-powers case, the Supreme Court on Monday struck down a law that would have allowed American parents of children born in Jerusalem to obtain passports saying the children were born in Israel. The president, rather than Congress, must determine national policy on the status of Jerusalem, the majority said.

The decision came against the backdrop of generations of conflict in the Middle East and longstanding tensions between Congress and presidents on the conduct of foreign policy there. The vote was 6 to 3, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. dissenting.

Justice Anthony M. Kennedy, writing for five justices, said the court had approached the question cautiously.

“Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy,” Justice Kennedy wrote, “and indeed it is one of the most delicate issues in current international affairs.”

But Justice Kennedy said the Constitution gave the president exclusive authority to determine the nation’s stance. “Put simply,” he wrote, “the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.”

The nation must speak with one voice, he said, and “that voice must be the president’s.”

In dissent, Chief Justice Roberts said the majority had taken a bold step. “Today’s decision is a first,” he wrote. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.”

The case concerned a 2002 law that instructed the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents requested the designation. The law was meant to take a symbolic stand on the status of Jerusalem, which has long divided not only Israelis and Arabs but also Congress and presidents of both parties.

Separation of Powers in Foreign Affairs

The court decided in Zivotofsky v. Kerry that Congress was not entitled to order the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents requested.

6-3

MAJORITY

DISSENT

Sotomayor

Kagan

Ginsburg

Breyer

Kennedy

Roberts

Scalia

Alito

Thomas

• The Bush administration did not follow the Jerusalem provision, saying that it interfered with the president's constitutional authority to conduct foreign affairs. The Obama administration has followed suit.

• The case was brought by the parents of Menachem B. Zivotofsky, who was born not long after Congress enacted the law in 2002.

More major Supreme Court cases this term »

But the executive branch’s policy since Harry Truman’s presidency “has been to recognize no state as having sovereignty over Jerusalem, leaving the issue to be decided by negotiation between the parties to the Arab-Israeli dispute,” the Obama administration said in a brief in the case.

The case, Zivotofsky v. Kerry, No. 13-628, was brought by the parents of Menachem B. Zivotofsky, who was born not long after Congress enacted the law. Under the State Department’s policies, their son’s passport says that he was born in Jerusalem.

They sought to have the passport say Israel in order to express pride in his birth there, they said. President George W. Bush signed the law, part of an appropriations bill, but said he would not follow the Jerusalem provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.”

Justice Scalia announced his dissent from the bench, a rare move indicating bitter disagreement.

“A principle that the nation must have a single foreign policy, which elevates efficiency above the text and structure of the Constitution, will systematically favor the president at the expense of Congress,” he said. “It is possible that it will make for more effective foreign policy, perhaps as effective as that of Bismarck or King George. But it is certain that, in the long run, it will erode the structure of equal and separated powers that the people established for the protection of their liberty.”

Reaction to the decision in the Middle East focused on its bottom line and not on the Supreme Court’s differing conceptions of the separation of powers required by the Constitution.

Saeb Erekat, the chief Palestinian negotiator, praised the decision and said it “sends a clear message to Israel that its policies of colonization are null and void.”

The American Embassy is in Tel Aviv, but Mayor Nir Barkat of Jerusalem called on President Obama to recognize his city as Israel’s capital, saying it was particularly important “when anti-Semitism is trying to raise its head.”

“Just as Washington is the capital of the United States, London the capital of England and Paris the capital of France,” Mr. Barkat said in a statement, “so Jerusalem was and always will be the capital of Israel, and the heart and soul of the Jewish people.”

Justice Kennedy based his opinion on provisions of the Constitution authorizing the president to receive foreign ambassadors, to appoint American ones and to make treaties.

Chief Justice Roberts responded that receiving ambassadors is a presidential duty rather than a power.

“The president does have power to make treaties and appoint ambassadors,” the chief justice added. “But those authorities are shared with Congress, so they hardly support an inference that the recognition power is exclusive.”

Chief Justice Roberts wrote that the majority decision would be wrong even if the president’s power to recognize foreign governments were exclusive. What was at issue, after all, he said, was a notation in a passport. “The annals of diplomatic history,” he wrote, “record no examples of official recognition accomplished via optional passport designation.”

Justice Kennedy wrote that some observers had interpreted passport provision as altering United States policy, leading to “protests across the region.” Chief Justice Roberts responded that giving legal weight to such mistaken reactions “is essentially to subject a duly enacted statute to an international heckler’s veto.”

Justice Kennedy wrote that Congress was not free to contradict the president’s determination about the status of Jerusalem even in a notation in a passport.

“This is not to say Congress may not express its disagreement with the president in myriad ways,” Justice Kennedy added. “For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the president’s recognition decision.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Justice Kennedy’s majority opinion.

Justice Clarence Thomas voted with the majority to strike down the passport provision, but he did not adopt its reasoning. He traded jabs with Justice Scalia, usually an ally.

Justice Scalia wrote that Justice Thomas’s approach would produce “a presidency more reminiscent of George III than George Washington.”

Justice Thomas responded that Justice Scalia’s opinion “about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America.”